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Judge Lord overrules objection to disclosure of CBI to experts in 925 investigation

In Certain Communications Or Computing Devices, Inv. No. 337-TA-925, ALJ Lord issued Order No. 12 overruling Apple’s objection to disclosure of Apple’s CBI to two of EST’s proposed technical experts. This Order is exemplary of the Commission’s general rule that CBI may be disclosed to an independent expert provided there is no real threat that the expert could potentially misuse CBI to the competitive disadvantage of the producing party. One of EST’s experts works as a consultant involving assessing patents and identifying potential targets and the other works as a consultant on evaluating patent portfolios offered for sale. In both instances, Apple asserts that EST’s experts have worked for Apple competitors in the past and could potentially misuse CBI to assist such competitors in targeting Apple in the future. ALJ Lord overruled Apple’s objection finding that it is “based entirely on the hypothetical argument” that EST’s experts could, at some point in the future, use the CBI learned in the Investigation to assist Apple competitors, which Judge Lord asserted “is true of any technical expert in patent infringement litigation.” Judge Lord cited to Paragraph 4 of the Protective Order, as specifically addressing Apple’s concerns, by prohibiting the experts from revealing or using Apple’s CBI “for purposes other than this Investigation.” Judge Lord also found that Apple has not called into question the “personal integrity or reputation” of EST’s experts.

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